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The Last Gasp Of The [Australian] States

The current pandemic seems to have demonstrated the power and authority of Australian state governments against the Commonwealth. Are we seeing a return to the original ideals of federalism, or is this about making sure there’s political blame to spread around? Andrew P Street takes a wild guess.

Do you feel that strange tang in the air, fellow Australians? That sense that all the basic truths that we hold dear have been forever altered? Have you lost your sense of taste and smell and do you feel a heaviness in your chest? If it’s that last one you should definitely get tested for COVID-19, but for the rest of us there’s no mistaking that feeling: that our state governments have shown the Commonwealth who’s boss in this here Federation. 

While the federal government dithered in the early days of COVID-19, state premiers were quick to enact lockdowns, ramp up virus testing, close schools and shut their borders – most notably Victoria’s Daniel Andrews and NSW’s Gladys Berejiklian. And Prime Minister Scott Morrison seemed to recognise their authority, swiftly convening a “war cabinet” of the state premiers to work out the national response to the growing worldwide pandemic. 

And as things began to open up again the headlines have been largely about the federal government disagreeing with the states about, for example, reopening borders and sending children back to school, with the states (particularly the ones with non-Liberal governments) largely refusing to be rushed. 

It’s worth taking note of, because the story of state-federal relations since 1901 has been one of the federal government stealthily taking over more and more of the state’s powers. But with the one-two punch of our horrific bushfire season (with fire services a state responsibility) and the effects of the coronavirus on Australia, suddenly state governments have come to the fore. 

So does this mean a reversal in the familiar master-supplicant relationship? Is a new states-right golden age upon us? David Hunt, Australian historian and author of the award-winning Girt, says the answer is no; it’s a fundamental consequence of difference in the priorities of Australian politics between 1901 and now.

“The framers of the Constitution were effectively the state premiers,” he explains. “The first cabinet was called the Cabinet of Kings because it was largely premiers who had been passionately arguing for their states before joining this new federal parliament, but they were fairly sympathetic to state rights. 

“So the people running the show federally were state’s rights people, and they were busy setting up things like high courts and arbitration commissions and other things. There was plenty on their plate to distract them from aggressively poking their fingers in other people’s pies.”

So what came along to overwhelm parochial interests? Take a bow, political interests!

“Other than the Labor Party [which formed as a workers rights body in multiple states during the 1890s] there were no political parties which tied people to caucus-like decisions; so state loyalty was stronger than party loyalty. With the move toward party politics, which really started with the anti-Labor parties forming the Fusion [also called the Commonwealth Liberal Party] under Alfred Deakin in 1909, we first had people thinking, ‘We’re running this show for our party, not for our state’. What we have now is very different to what was envisaged.”

“What we have now is very different to what was envisaged.”

One of the biggest shocks about first reading the Australian Constitution is how short and clear it is. It lays out in (relatively) clear terms what the responsibilities of the federal government are, with all the remaining areas being the domain of the states. Except that what it said then and what actually happens now are rather different.

For example, under Federation, the idea was that the states had autonomy on most things and the federal government controlled the cross border stuff – trade, postal communications, defence and suchlike. So, for example, healthcare is a state responsibility – but that changed in 1975 when the Labor government of Gough Whitlam brought in Medibank (later Medicare) as a way to provide Australians with universal healthcare. The government couldn’t control hospitals – a state responsibility – but it could determine what GPs were paid.

This was done via a Constitutional loophole in Section 51, achieved by a game-changing post-war referendum in 1946 that gave the federal government the power to make laws around “the provision of […] sickness and hospital benefits, medical and dental services”. Health was a state responsibility, sure – but the feds had the power to create a scheme whereby patients were covered for its use. 

This sort of legislation-creep has been the norm as struggling state governments find it harder and harder to maintain services on a limited revenue base after the federal government successfully claimed the exclusive right to levy income tax during World War II. Thus making it easy for the federal government to take de-facto control of areas outside of its purview by dangling conditional grants to, say, build hospitals (or, more controversially, coal-fired power plants in Queensland, or swimming pools in marginal electorates). 

“So yes, we’ve seen this return to the Twenties state-federal collective model, in some ways,”

Historically, big changes to Commonwealth power have come in times of crisis, such as the two world wars. So why aren’t we seeing another power grab from the feds now – or, for that matter a Constitutional challenge over the states closing of the borders?

“Arguably it could,” Hunt says. “But it would take a long while to get a decision to that effect, and I don’t think it would be a very popular decision. And also, no party would want to be seen to tear down state borders and potentially be seen to spread the virus.” 

The party loyalty would make it difficult too. Sure, the Labor governments of Queensland and Victoria have been easy targets for the Morrison government’s bullish open-the-borders rhetoric, but it was very muted toward the equally-reluctant Liberal government of South Australia. The system works!

“So yes, we’ve seen this return to the Twenties state-federal collective model, in some ways,” Hunt shrugs. “But I don’t think it will have any lasting impact on the states asserting their power, because ultimately the Commonwealth holds the pursestrings.”

So enjoy our bullish premiers while you can, Australia: it may be the last time.